PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 May 2002                   
	DOCKET NUMBER:   AR2002067070

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Reserve Officers’ Training Corps (ROTC) contract be corrected to show he signed it on 27 August 2001 and that he receive back pay retroactive to that date.

3.  The applicant states that he started the contracting process in mid-August 2001.  When he was told he needed a medical waiver for his Lasik eye surgery, he completed it and sent it in by 21 August 2001.  However, the waiver was improperly processed and, because the school lost its administrative technician, it took three months for the error to be found, corrected, and the waiver to be properly completed.  Once the waiver was properly processed, it took 1 week to be completed.

4.  The applicant does not have military records.  Information obtained from alternate sources show he was already in the Army National Guard and had taken a periodic physical exam at Madigan Army Medical Center on 11 February 2001.  It was noted in item 43 of the Report of Medical Examination, SF 88, that he had had Lasik surgery on both eyes.  He was found to be qualified for retention.  Apparently, this was the physical exam used to determine his medical qualification for ROTC.  The front of the SF 88 was originally stamped to indicate he was physically qualified for appointment in the U. S. Army Reserve.

5.  Apparently on 1 August 2001, an Army Senior Reserve Officers’ Training Corps (ROTC) Nonscholarship Cadet Contract, DA Form 597, on the applicant was initiated, education to commence 27 August 2001.

6.  On 21 August 2001, the applicant requested a medical waiver because of his eye surgery.  It apparently was held up because the physical exam was not provided.  Apparently, the signed physical was returned to the school indicating the applicant was qualified for appointment in the U. S. Army Reserve and the packet then sent to U. S. Army Cadet Command.  Apparently, on 29 October 2001 it was discovered that the waiver could not be processed because the physical exam had to be corrected to show the applicant was medically disqualified for ROTC.  The SF 88 was returned to Madigan Army Medical Center, properly stamped to show he was medically disqualified for ROTC, sent back to the school, and forwarded on to U. S. Army Cadet Command.  Apparently on 5 November 2001, U. S. Army Cadet Command requested another document.  That document was completed and sent to U. S. Army Cadet Command on 7 November 2001.  On 16 November 2001, the applicant’s medical waiver was approved.  He signed his contract on 27 November 2001.

7.  The applicant provides a letter of support from his Assistant Professor of Military Science.  He states the applicant completed and submitted all the forms he was told to in a timely manner.  He was enrolled as a Military Science III cadet in August 2001 and, through no fault of his own, he was unable to contract in 

August at the start of the school year.  He finally contracted in November 2001.  He participated in all activities and completed all tasks he was asked to complete.

8.  Nonscholarship ROTC students can receive a stipend  ($300 for juniors, $350 for seniors) during their last two years.  The applicant’s Assistant Professor of Military Science confirmed that by “back pay” the applicant means the stipend.  He also confirmed that the applicant has actively participated in ROTC since school started in August 2001.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment and appointment, including officer procurement programs, and for retention and separation.  The standards for enlistment and appointment are higher than those for retention and separation.  Chapter 2 governs the medical fitness standards for enlistment and appointment.  Paragraph 2-12c(2) states that a history of keratorefractive surgery accomplished to modify the refractive power of the cornea and laser surgery to reconfigure the cornea are causes for rejection.  Chapter 3 governs the medical fitness standards for retention and separation.  Paragraph 3-15, Eyes, does not list laser surgery as a cause for referral to a medical evaluation board.

CONCLUSIONS:

1.  The Board accepts the evidence provided as showing that an injustice has occurred in this case.  Since the applicant was already a member of the Army National Guard, it was reasonable for him to presume that he would have been fully qualified for ROTC.  Had he been properly informed that he needed a medical waiver and how to properly complete that medical waiver in a timely manner, the Board presumes it would have been approved, as it eventually was, in time for him to sign his contract prior to the start of the school year.

2.  The applicant’s Assistant Professor of Military Science confirmed that the applicant actively and in a competent manner participated in ROTC since the school year started in August 2001.  It would be equitable to show that he completed his medical waiver request in a timely manner and that it was approved in time for him to sign his ROTC contract on 27 August 2001, the day his education commenced, thereby qualifying him for any authorized stipend effective 27 August 2001.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing his request for a medical waiver was properly submitted and approved prior to 27 August 2001.

2.  That the applicant’s DA Form 597 be amended to show it was signed on        27 August 2001.

3.  That the applicant be paid any authorized ROTC stipend effective 27 August 2001.

BOARD VOTE:  

__fne___  __rwa___  __pm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067070	
SUFFIX		
RECON		
DATE BOARDED	20020516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	104.03	
2.		
3.		
4.		
5.		
6.